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What you should know before signing a contract (Part 1)

What you should know before signing a contract (Part 1)

by | Jul 4, 2016 | Uncategorized


This is the first post from
a series of articles on Contracts; other articles will follow as the weeks
progress.
A contract is defined by
L.B Curzon’s “A Dictionary of Law” to be a legally binding agreement. In other
words, it is an agreement between 2 or more parties which the law/court will
honour. For instance, a building contract, an employment contract or a loan
agreement and so on. 

For a contract to be recognized
by law, it must have been entered freely and voluntarily i.e. there must have
been no form of undue influence while negotiating the contract. For instance,
an agreement for the sale of an hotel when the seller is held at gun point by the
buyer will not be recognized by law if such circumstances are brought to the
knowledge of the court. 
Contracts can be in
different forms depending on the nature of the agreement. For example,
contracts for the sale of land are “contracts under seal” and can also be
called deeds. Such contracts are usually required to be in writing, signed, sealed
and delivered. Simple contracts on the other hand include oral contracts and
contracts which include some little writing. Implied contracts arise from the
assumed intentions of the parties. While, contracts of record, arise from
obligations imposed by a court’s decision. 
A contract evolves in
stages beginning from the offer to the acceptance of that offer and finally to its
execution/ termination. These stages must be supported by consensus among the
parties; a genuine intention to enter contractual relations; valuable
consideration and the legal capacity of the parties to enter into the
agreement. 
Please note, that illegal
contracts will not be recognized by law. This means any contract that involves
any illegality will not be honoured by the courts. As an illustration, in
Nigeria, an agreement to buy or sell stolen property will not be recognized by
law because dealing in stolen property is in itself a crime and an illegality. 
It is recommended that
before you sign an agreement, you evaluate if the terms constitute a valid
contract and all parties are clear of their respective duties and obligations
under the contract. Also, do not hesitate to seek counsel from a legal
practitioner if you need to. 
Dunmade Onibokun Esq.
+2349095635314
 dunmadeo@yahoo.com 
Adedunmade’s legal
practice focuses on corporate and commercial law, regulatory compliance, due
diligence, corporate advice and commercial transactions.  He is the Managing Partner of Adedunmade
Onibokun & Co.
LegalNaija: Blogging clarity into Nigeria’s legal jumble by @forakin

LegalNaija: Blogging clarity into Nigeria’s legal jumble by @forakin

by | Jul 3, 2016 | Uncategorized


Trust but verify
Maybe there is a case for
becoming a bit bookish about knowing how to live and work in Nigeria. Possibly
making your decisions based on something more concrete than what you heard
someone say and that idea has been through so many revisions before it got to
you with no semblance to the original thought or import. Rumours should not
equate to fact, even if eventually proven true.
If accosted, in a country
rife with the abuse of rights and process, would you know your rights enough to
fight your corner through the system and expect not to have been persecuted and
prosecuted unfairly?

Much as we can be
religious and leave much to chance, gut feeling or the sentiment of belief or
clan, the many times we have entered into arrangements that fall through
because the detail necessary to make binding agreements were not pored over
with the necessity such requires.
This blog began on a whim
as I asked on Twitter what I should write about and @LegalNaija challenged me to write
something about their blog.
Taking you through the
minutiae
LegalNaija
is hosted at http://www.legalnaija.com/ 
and they have been active since 2012, they provide a disclaimer on their front
page that reads, “Posts and comments by the publishers of this blog do not
constitute legal advice or create an attorney-client relationship.” 
However, the kind of
information you can glean from the many things they write about can give
insight into how to ride through much of the Nigerian bureaucracy which at the
best of times can be a haunting nightmare, leaving you out of pocket and with
nothing to show for it.
Simple things like reading and vetting
your contracts before you sign anything; as if we should be told, but in
many cases, we rarely ready the small print, it is sometimes suffused with
indecipherable legalese leading in unexpected pitfalls when things fall apart.
Nothing wrong in reminding us of such simple things.
A tip, an insight or an
idea
On the blog, you have
explainers on fundamental rights, operating businesses, seeking legal redress,
bills enacted, laws and much else that a blog like mine cannot begin to cover.
However, I can introduce
you to LegalNaija and ask that you
follow their Twitter account @LegalNaija,
there is no telling what snippet of information can be that insight or idea to
ensure you don’t end up in a needless and expensive legal wrangle – and I tell
you, Nigeria is one legal minefield even to the savviest of legal experts. I
commend them.

By: Akin Akintayo 
Ed’s Note- This article was originally published here
Mowunmi Abdulkareem: ICT/IT-Legal Issues

Mowunmi Abdulkareem: ICT/IT-Legal Issues

by | Jul 1, 2016 | Uncategorized


Information and
Communication Technology
Information and
Communication technology law is the field of law that makes available the legal
framework for collecting, storing, and disseminating electronic information in
the in both local and international marketplace. A lawyer who specializes in
this area of the law represents individuals and businesses from all different
sectors. They structure and construct ICT/ IT-related transactions in a way
that maximizes the client’s economic benefit and ensure regulatory compliance.
Attention is always given to anticipating potential sources of dispute between
the parties to a transaction, and crafting agreements that address these fears,
and hence reducing the risk of litigation.

Sometimes disputes arise
in this field of law and surely it is a lawyer specializing in these types of
cases can prove a powerful advocate compared to a general legal practitioner.
Such a lawyer is more effective at explaining technical concepts to the Court;
and will likely have contacts within the industry that make finding consultants
and expert witnesses less difficult. Clearly, information technology law is a
forte practice. 
Software Licensing Issues
It is not in doubt that
businesses often change or update their operating software in an effort to keep
pace with technology. Switching software programs can lead to greater
profitability, but it can also present any number of legal pitfalls for unsuspecting
business managers. For example, a typical software licensing contract will
contain provisions relating to performance warranties, installation and
troubleshooting, user training, limited liability and indemnification of the
vendor, infringement disclaimers, payment and finance terms, and more. Despite
the complexity of these agreements, some software company representatives
purposefully wait to provide a copy until shortly before the sale closes. 
Owners and managers who
find themselves presented with a licensing agreement that they do not
completely understand should resist pressure from the sales representative to
sign the document with little or no time for meaningful review. Any “deadline”
imposed by the vendor is likely nothing more than a high pressure sales tactic.
There is simply too much at stake in the event the software fails to meet the
needs of the business. The wisest course of action is to demand additional
time, and hire an information technology lawyer to analyze and explain the contract
and to point out terms that should be inserted or removed.

Data Privacy and Security

Much of the litigation
that occurs in this field of law results from enterprises failing to keep
customer and employee information secure. Now that it is primarily stored in
digital format, sensitive information is prone to theft on a scale unimaginable
in previous generations. Hackers and other cyber criminals routinely target
financial institutions, e-commerce websites, and ordinary businesses, sometimes
gaining access to thousands of customers’ data all at once. This can lead to
various legal claims, from government enforcement actions to class action
consumer lawsuits.
Companies that have any
presence on the internet should act proactively to avoid these problems. Information
technology lawyers are available to audit security systems and policies, and to
recommend any necessary changes; and defend against civil litigation brought by
private parties. Data privacy and security issues can arise at any time. To
succeed in today’s business environment, it is critical to stay ahead of the
curve and make safeguarding digital information a priority. 
Electronic Signature
Another growing cause of
concern for many businesses involves electronic signatures. Like digital
storage, electronic signature software has the potential to dramatically
streamline operations for businesses willing to embrace new technology. At the
same time, care must be taken to avoid compromising sensitive customer data
and/or violating government regulations on the subject. It is pertinent to
mention at this juncture that the Electronic Transactions Bill 2015 which is
currently awaiting presidential assent represent giant strides in the
facilitation of electronic transactions and recognition of electronic signatures
in Nigeria. The Bill, if passed into law, could help to address certain issues
affecting electronic transactions in Nigeria and (also to a large extent)
prevent against some inequities that occur in several electronic transactions.
The Bill will also allow
companies to replace traditional paper signature documents with electronic
forms. By virtue of the said Bill (if passed to law) the Customers will be able
to agree to contractual terms with the click of a computer mouse, speeding up
the turnaround time for a transaction considerably as long the electronic
signatures comply with rules relating to customer consent disclosures, record
retention, and document reproduction capabilities. Again, engaging a lawyer to
conduct a compliance review in this area is highly recommended.

ICT/IT Lawyers

If you conduct any type of
business activity online and you care to know whether your current practices
are exposing your business to potential liability; or you are about enter into
any ICT/IT-related transaction, contact an information Communication technology
lawyer today.
By  OMOWUNMI
ABDULKAREEM ESQ
ASSOCIATE
ABIODUN ADESANYA & CO.
BOOKSHOP HOUSE (2ND FLOOR)
50/52 BROAD STREET,
LAGOS

Ed’s Note: This article was originally published here.
Magnus Amudi: Shareholders Resolutions: Matters Requiring Special Resolutions

Magnus Amudi: Shareholders Resolutions: Matters Requiring Special Resolutions

by | Jul 1, 2016 | Uncategorized


Under the Companies and
Allied Matters Act, Chapter C20, Laws of the Federation of Nigeria, 2004 (CAMA)
a resolution may be passed as ordinary or special resolution. An ordinary
resolution is one passed by at least 50% of the votes plus one while a special
resolution is one passed by at least 75% of the votes. The CAMA provides that a
company may, by its articles, provide that any matter not required by the
articles or by the CAMA to be passed by a special resolution shall be passed by
ordinary resolution. As such, all matters can be passed by ordinary resolutions
except the following:

1.     Alteration
of the memorandum of association (section 46(1) CAMA).
2.     Alteration
of articles of association (section 48(1) CAMA).
3.     Changing
the name of the company (section 31(3) CAMA).
4.     Reduction
in authorized share capital (section 106 (1) CAMA).
5.     Making
liability of directors unlimited (section 289 CAMA).
6.     Resolution
that the company be wound up by the court (section 408(a) CAMA).
7.     Resolution
that the company be wound up voluntarily (section 457(b) CAMA).
8.     Authorizing
the liquidator on the sale of undertaking of company to receive shares,
policies, or similar interests as consideration for distribution among members
(section 538 CAMA).
9.     Re-registration
of unlimited company as company limited by shares (section 52(1) CAMA).
10.  Re-registration of a company limited by
shares as unlimited company (section 51(5) and 46(1) CAMA).
11.  Re-registration of private company as
public company (section 50(1) CAMA).
12.Re-registration of public company as a
private company (section 53(1) CAMA).
13.A resolution for a scheme proposed for a
compromise, arrangement or reconstruction or merger between it and another
company (section 539 CAMA).
14.A resolution by the company to pay interest
on equity capital raised to defray the expenses of certain infrastructure
projects which cannot be made profitable for a long period (section 113 CAMA).
15.  
A resolution to determine that any portion
of the company’s share capital which has not been already called up shall not
be capable of being called up except in the event and for the purposes of the
company being wound up (section 134 CAMA).
16. A resolution of the holders of a class of
shares to vary the rights attached to that class of shares (section 141 CAMA).
17. A resolution to alter remuneration of
directors fixed by articles of association (section 267 CAMA).
18.In a member’s voluntary winding up, a
resolution, on or after the appointment of a liquidator, that the accounts of
the company shall not be audited prior to its being laid before the general
meeting (section 470(6).
19.In a members voluntary winding up a
resolution to authorise the liquidator to pay any classes of creditors in full;
to make any compromise or arrangement with creditors; to compromise all calls,
and liabilities to calls, debts and liabilities (section 481).
By:
Magnus Amudi
Magnus Amudi is an
Associate Attorney at Aelex. His major areas of practice are
Corporate/Commercial Law, Energy and Natural Resources, Company
Secretarial/Compliance, Labour and Employment Law.
Ed’s Note: This article was originally published here.
Magnus Amudi – New guidelines for the operation of the Nigerian Inter-Bank FX Market

Magnus Amudi – New guidelines for the operation of the Nigerian Inter-Bank FX Market

by | Jul 1, 2016 | Uncategorized


1.0 Introduction
In line with the
objectives of enhancing efficiency and facilitating a liquid and transparent,
Foreign Exchange (FX) market, the Central Bank of Nigeria (CBN) hereby releases
the revised guidelines on the operations of the Nigerian Inter-Bank FX market
towards the liberalisation of the market.

2.0 Guidelines
The CBN shall operate a
single market structure through the autonomous/inter-bank market i.e. the
Inter-Bank Foreign Exchange Market with the CBN participating in the FX market
through interventions (i.e. CBN Interventions) directly in the inter-bank
market or through dynamic “Secondary Market Intervention Mechanisms”.
Furthermore, to promote
the global competitiveness of the market, the inter-bank FX market will be
supported by the introduction of additional risk management products offered by
the CBN and Authorised Dealers to further deepen the FX market, boost liquidity
and promote financial security in the market.
Additionally, to further
improve the dynamics of the market, the CBN shall introduce FX Primary Dealers
(FXPDs). These shall be registered Authorised Dealers designated to deal with
the CBN on large trade sizes on a two-way quote basis. amongst other
obligations as stated in the FXPD Guidelines – (Guidelines for Primary
Dealership in FX Products). The FXPDs shall operate with other Authorised
Dealers (non-FXPDs) in the Inter-bank market.
 
2.1 Inter-bank Foreign
Exchange
Market 2.1.1
Participants in the
inter-bank FX market shall include Authorised Dealers, Authorised Buyers, Oil
Companies, Oil Service Companies, Exporters, End-users and any other entity the
CBN may designate from time to time.
2.1.2Authorised
Dealers shall buy and sell FX among themselves on a two-way quote basis via the
FMDQ Thomson Reuters FX Trading Systems (TRFXT Conversational Dealing), or any
other system approved by the CBN.
2.1.3 Authorised
Dealers may offer one-way quotes (bid or offer) on all products and on request
to other Authorised participants via the FMDQ Thomson Reuters FX Trading System
(FMDQ TRFXT – Order Book System), or any other system approved by the CBN.
2.1.4 The
maximum spread between the bid and offer rates in the inter-bank market shall
be determined by FMDQ OTC Securities Exchange (FMDQ) via its market
organisation activities with the Financial Market Dealers Association (FMDA).
2.1.5 Proceeds
of Foreign Investment Inflows and International Money Transfers shall be
purchased by Authorised Dealers at the inter-bank rate.
2.2 HEDGING PRODUCTS
2.2.1To further deepen the
FX market, in addition to the already approved hedging products referenced in
the CBN “Guidelines for FX Derivatives and Modalities for CBN FX Forwards”,
Authorised Dealers are now permitted to offer Naira-settled
non-deliverable overthe-counter (OTC) FX Futures.
2.2.2 OTC
FX Futures’ transactions shall be nonstandardised with fixed tenors and bespoke
maturity dates.
2.2.3 OTC
FX Futures sold by Authorised Dealers to endusers must be backed by trade
transactions (visible and invisible) or evidenced investments.
2.2.4 FMDQ
will provide the appropriate benchmarks for the valuation and settlement of the
OTC FX Futures and other FX derivatives.
2.2.5 FX
OTC Futures and Forwards will count as part of the FX positions of Authorised
Dealers.
2.2.6 To
promote market liquidity, Authorised Dealers may apply FX Spot transactions to
hedge Outright Forwards, OTC FX Futures and FX Options etc.
2.2.7 Settlement
amounts on OTC FX Futures may be externalised for Foreign Portfolio Investors
(FPIs) with Certificates of Capital Importation. Such settlement amounts shall
be evidenced by an FMDQ OTC FX Futures Settlement Advice.
2.2.8 Furthermore,
FMDQ will be developing detailed registration and operational regulation on FX
Options and will drive, with the market, the development of other risk
management products and attendant guidelines.
2.3 Foreign Currency
Trading Position
2.3.1 Further
to the CBN Circular Ref: TED/FEM/FPC/GEN/01/001 dated 12th January 2015,
Authorised Dealers, (FXPDs and non-FXPDs) are hereby notified of a review in
the daily Foreign Currency Trading Positions of banks. Consequently, Authorised
Dealers shall have maximum limits of +0.5%/-10% of their Shareholders’ Funds
unimpaired by losses as Foreign Currency Trading Position Limits to support
their obligations as liquidity providers at the close of each business day.
2.3.2 Where
an Authorised Dealer requires a higher position limit to accommodate a customer
trade, the Authorised Dealer shall contact the Director, Financial Markets
Department. Where the request is assessed as valid, the Director shall
communicate immediate approval by text or email to the Authorised Dealer.
Thereafter, the Authorised Dealer must, with 24 hours, write to the Director,
Financial Markets Department who will thereafter communicate an approval in
writing. The Director, FMD shall exercise discretion on the duration of the
temporary position limit depending on the estimated defeasance period of the
transaction size.
2.3.3 Returns
on the purchases and sales of FX shall be rendered daily to the CBN by
Authorised Dealers.
2.3.4 Inter-bank
funds shall NOT be sold to Bureaux-deChange.
2.3.5 The
forty-one (41) items classified as “Not Valid for Foreign Exchange” as detailed
in the CBN Circular Ref: TED/FEM/FPC/GEN/01/010, remain inadmissible in the
Nigerian FX market. 2.3.6Applicable exchange rate for the purpose of import
duty payments shall be the daily inter-bank FX closing rate as published on the
CBN website.
2.4 CBN INTERVENTIONS
2.4.1 Participation
in the FX market by the CBN shall be via: i. The Inter-Bank FX Market ii.
Secondary Market Intervention Sales (SMIS)
2.4.2 Intervention
Through the Inter-Bank FX Market
1.    
The CBN reserves the right to intervene in
the inter-bank market to either buy or sell FX Spot upon the receipt of valid
two-way quotes on the standard amount as defined from time to time in the FXPD
Guidelines.
2.    
CBN may also intervene in the inter-bank
market by placing orders for non-standard amounts in the FMDQ TRFXT – Order
Book System., or any other system as approved by the CBN.
  • There shall be no predetermined spread
    on FX Spot transactions executed through CBN intervention with the FXPDs.
1.    
The CBN reserves the right to intervene in
the inter-bank market to either buy or sell FX Forwards upon the receipt of
valid two-way quotes on the standard amount as defined from time to time in the
FXPD Guidelines.
2.    
To enhance liquidity, CBN shall also offer
nondeliverable OTC FX Futures (bid or offer) daily on the FMDQ OTC FX Futures
Trading & Reporting System.
3.    
The OTC FX Futures shall be in non-standardised
amounts and different fixed tenors which may be sold on any date thereby giving
bespoke maturity dates.
  • FXPDs may purchase OTC FX Futures for
    their own accounts or sell to other Authorised Dealers and end-users.
    viii. There shall be no maximum spread on the sale of the Forwards and OTC
    FX Futures purchased from CBN by FXPDs to Authorised Dealers and endusers
2.4.3 Secondary Market
Intervention Sales (SMIS)
1.    
The CBN may, at its discretion, intervene
in the FX market through the sale of FX to Authorised Dealers (wholesale) or to
end-users through Authorised Dealers (retail) via a multiple-price book
building process using the FMDQ-Thomson Reuters FX Auction Systems, or any
other system approved by the CBN. All SMIS bids shall be submitted to the CBN
through the FXPDs.
SMIS – Wholesale:
  • All FX Spot purchased by Authorised
    Dealers are transferable in the inter-bank FX market.
  • CBN may offer long-tenored FX Forwards
    of 6 – 12 months or any tenor to Authorised Dealers. o Sale of FX Forwards
    by Authorised Dealers to end-users must be tradebacked. There shall be no
    predetermined spread.
  • FX Forwards purchased by Authorised
    Dealers are transferable in the inter-bank FX market.
SMIS – Retail:
  • All FX Spot purchased by Authorised
    Dealers for end-users shall be for eligible transactions only upon the
    provision of appropriate documentation.
  • FX Spot sold to any particular
    end-user shall not exceed 1% of the overall available funds on offer at
    each SMIS session.
  • CBN may offer FX Forwards to endusers
    through Authorised Dealers and may limit the amount sold to an individual
    end-user o All FX Forwards sales to end-users must be trade-backed.
  • There shall be no maximum spread on
    the sale of FX Forwards by Authorised Dealers to end-users.
3.0 Execution and
Reporting
2.5 To ensure effective
monitoring of the FX market, all Authorised Dealers and end-users are required
to trade only on FMDQ-advised FX Trading System(s). All transactions not
executed on the Trading Systems shall be voice reported on the Trading Systems.
2.6 All FX transactions by
Authorised Dealers are to be reported to FMDQ via the FMDQ-advised FX Reporting
System. CBN will be granted access to this system.
4.0 Sanctions
Authorised Dealers are
enjoined to comply with the provisions of these Guidelines, failing which
appropriate sanctions shall be imposed, including suspension of the FXPD,
Authorised Representatives of the Authorised Dealer, suspension of Authorised
Dealer from the FX market and/or withdrawal of the Authorised Dealership
Licence.
For the avoidance of
doubt, all Authorised Dealers are to refer policy issues in respect of which
they are in doubt to the Director, Financial Markets Department, Central Bank
of Nigeria for clarification.
5.0. Primacy of the
Guidelines
These Guidelines
supersede:
1.    
Circular Ref: TED/FEM/FPC/GEN/01/020 dates
October 28, 2014 titled “Guidelines on the Operation of CBN Interventions in
the Inter-Bank Market through the Two Way Quote System”.
2.    
All other prior Circulars and Guidelines on
the subject matter. Please be guided

By: Magnus Amudi
Magnus Amudi is an Associate
Attorney at Aelex. His major areas of practice are Corporate/Commercial Law,
Energy and Natural Resources, Company Secretarial/Compliance, Labour and
Employment Law.
Ed’s Note: This article was originally published here. 

The dialogue now should be focused on inclusivity in the workplace, writes Tunde Okewale MBE

The dialogue now should be focused on inclusivity in the workplace, writes Tunde Okewale MBE

by | Jun 29, 2016 | Uncategorized

To facilitate change and
improve the retention and progression of candidates from diverse backgrounds,
the focus needs to be on inclusion. The big question is: are we trying to
assimilate people from diverse backgrounds into the established norms of the profession
or are we trying to change the culture of profession? I believe the answer
should be the latter.

We need to be careful to
avoid workplace diversity evolving into solely a business necessity, rather
than being driven by an emotive discourse and moral case for equality towards
the individual, leading to an enhanced performance.

Instead of focusing on the
outdated debate about the benefits of diversity in the workplace, let us focus
on the matter of inclusivity. Managing the diversity that now exists has become
a bigger problem. The approach to recruitment into the legal profession has
improved, but issues remain surrounding progression and retention. More women
are entering the profession than men; however, the proportion of female
partners at City firms is usually less than 25 per cent.

There should be a focus on
the procedures and safeguards that can be put in place by organisations to
ensure that the same opportunities are available to women who are mothers.

Many graduate recruitment
organisations focus on helping firms recruit ethnic minority trainees, but the
figures in relation to ethnic minority associates and partners are also low.
There remains an issue in relation to the progression of Black and Minority
Ethnic (BME) practitioners at the Bar, with only 6 per cent of QCs declaring
that they are BME (compared with 12 per cent of the practising Bar)
and 90 per cent declaring that they are white. There has been no change in
these figures since 2014.

There is a paradox at play
in the recruitment of diverse candidates in the legal profession. While some
chambers and firms would be happy to recruit a diverse candidate over an
equally qualified traditional candidate, this is only the first step in
overhauling the process. The lack of thought and provision for
diverse employees, who may already feel excluded from the mainstream, stunts
the growth of the legal profession and causes capable, bright, and enthusiastic
professionals to leave.

The dialogue now should be
focused on inclusivity and ensuring that diversity paradoxically becomes the
norm.

An illustration of this is
that, rather than firms making adjustments for specific employees, adjustments
could be made so that differences are not apparent. This can be done with, for
example, dietary requirements, by ensuring that food options are varied
enough to embrace all cultures without highlighting individual differences, and
with activities and team-building excursions that embrace people from all
backgrounds.

Inclusivity is much more
difficult to implement in sectors deeply embedded in tradition. The social
norms were developed when the world was a different place, and politically
and socially at odds with the times we live in today. This means that the
issues are systemic and will require gradual and sustained cultural change.

But as the economy becomes
increasingly global and our workforce increasingly diverse, organisations’
success and competitiveness will depend on their ability to effectively
manage diversity and inclusion in the workplace.

Tunde Okewale MBE is a
barrister practising from Doughty Street Chambers @UrbnLawyerwww.doughtystreet.co.uk
ISSUE: 
Vol 160 no 25 28-06-16

Ed’s Note: This article was originally posted here.